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Domestic Violence

                     Domestic Violence Law of New Jersey
                                                    
by
                                                            
Donald S. Waskover, Esq.

New Jersey’s Prevention of Domestic Violence Act of 1991 ( N.J.S.A. 2C:25-17 to -35) sets forth a mechanism whereby victims of domestic violence may obtain domestic violence restraining orders against their wrongdoers, among other relief.

BACKGROUND AND INTENT

The intent of the Act is to assure the victims of domestic violence the maximum protection from abuse the law can provide. In passing the Prevention of Domestic Violence Act of 1991, the NJ Legislature declared that, even though many of the existing criminal statutes were applicable to acts of domestic violence, previous societal attitudes concerning domestic violence affected the response of law enforcement and the judicial system, resulting in these acts receiving different treatment from similar crimes when they occurred in a domestic context. The Legislature stated that battered adults, prior to the passage of the Act, experienced substantial difficulty in gaining access to protection from the judicial system, particularly due to that system's inability to generate a prompt response in an emergency situation.

Under the Act, the primary duty of a law enforcement officer when responding to a domestic violence call is to enforce the laws allegedly violated and to protect the victim. Further, it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public.

WHO IS PROTECTED

Under the Act, a "Victim of domestic violence" means a person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. "Victim of domestic violence" also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant. "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.

"Emancipated minor" means a person who is under 18 years of age but who has been married, has entered military service, has a child or is pregnant.

                                                          WHAT ARE ACTS OF DOMESTIC VIOLENCE

"Domestic violence" means the occurrence of one or more of the following acts inflicted upon a person protected under the act by an adult or an emancipated minor:

(1) Homicide N.J.S.2C:11-1 et seq.

(2) Assault N.J.S.2C:12-1

(3) Terroristic threats N.J.S.2C:12-3

(4) Kidnaping N.J.S.2C:13-1

(5) Criminal restraint N.J.S.2C:13-2

(6) False imprisonment N.J.S.2C:13-3

(7) Sexual assault N.J.S.2C:14-2

(8) Criminal sexual contact N.J.S.2C:14-3

(9) Lewdness N.J.S.2C:14-4

(10) Criminal mischief N.J.S.2C:17-3

(11) Burglary N.J.S.2C:18-2

(12) Criminal trespass N.J.S.2C:18-3

(13) Harassment N.J.S.2C:33-4

(14) Stalking P.L.1992, c.209 (C.2C:12-10)

In an application for a domestic violence restraining order, a plaintiff must establish by a preponderance of the evidence that one or more of the predicate acts set forth above has occurred, and that a domestic violence restraining order is necessary in order to protect the plaintiff from immediate danger or to prevent furthur abuse.

WHERE TO FILE A COMPLAINT

A victim may file a complaint alleging the commission of an act of domestic violence with the Family Part of the Chancery Division of the Superior Court. On weekends, holidays and other times when the court is closed, a victim may file a complaint before a judge of the Family Part of the Chancery Division of the Superior Court or a municipal court judge who is assigned to accept complaints and issue emergency, ex parte relief in the form of temporary restraining orders. 

A plaintiff may apply for relief under the Act in a court having jurisdiction over the place where the alleged act of domestic violence occurred, where the defendant resides, or where the plaintiff resides or is sheltered.

                                                                   TEMPORARY RESTRAINING ORDERS

Upon finding probable cause to believe an act of domestic violence has occurred and that a domestic violence restraining order is necessary in order to protect the plaintiff from immediate danger or to prevent further abuse, the court will enter a temporary restraining order (TRO). The kinds of things a judge can order in a TRO include:

(1) That the attacker is temporarily forbidden from entering the home where the victim lives;

(2) That the attacker is temporarily forbidden from having contact with the victim or the victim’s relatives;

(3) That the attacker is temporarily forbidden from bothering the victim at work;

(4) That the attacker has to pay temporary child support or support for the victim;

(5) That the victim be given temporary custody of their children;

(6) That the attacker pays back any money the victim has to spend for medical treatment or repairs because of the violence;

(7) Forbidding the attacker from possessing any firearm or other weapon; and

(8) Ordering the search for and seizure of any weapon at any location where the judge has reasonable cause to believe the weapon is located and the seizure of any firearms purchaser identification card or permit to purchase a handgun issued to the attacker. 

There are other forms of relief that a court can include in a TRO.

The judge may permit the defendant to return to the scene of the domestic violence to pick up personal belongings and effects but will, in the order granting relief, restrict the time and duration of such permission and provide for police supervision of such visit.

Any temporary order is immediately appealable for a plenary hearing de novo not on the record before any judge of the Family Part of the county in which the plaintiff resides or is sheltered if that judge issued the temporary order or has access to the reasons for the issuance of the temporary order and sets forth in the record the reasons for the modification or dissolution. The denial of a temporary restraining order by a municipal court judge and subsequent administrative dismissal of the complaint shall not bar the victim from refiling a complaint in the Family Part based on the same incident and receiving an emergency, ex parte hearing de novo not on the record before a Family Part judge.

PROCEDURE AFTER ISSUANCE OF A TRO

A hearing is held in the Family Part of the Chancery Division of the Superior Court within 10 days of the filing of a complaint. At the hearing the standard for proving the allegations in the complaint is by a preponderance of the evidence. The court will consider, but not be limited to, the following factors:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the protection of the victim's safety; and

(6) The existence of a verifiable order of protection from another jurisdiction.

FINAL RESTRAINING ORDER

In proceedings in which complaints for restraining orders have been filed and there has been a finding of the commission of an act of domestic violence, the court is required to grant any relief necessary to prevent further abuse. With certain limited exceptions, any restraining order issued by a court will bar the defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.2C:58-3 during the period in which the restraining order is in effect or two years whichever is greater.

At the hearing the judge may issue an order granting any or all of the following relief:

(1) An order restraining the defendant from subjecting the victim to domestic violence, as defined in the act.

(2) An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties. The order will not affect title or interest to any real property held by either party or both jointly. If it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victim's rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing.

(3) An order providing for parenting time. The order will protect the safety and well-being of the plaintiff and minor children and specify the place and frequency of parenting time. Parenting time arrangements shall not compromise any other remedy provided by the court by requiring or encouraging contact between the plaintiff and defendant. Orders for parenting time may include a designation of a place of parenting time away from the plaintiff, the participation of a third party, or supervised parenting time.

(4) An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence. The order may require the defendant to pay the victim directly, to reimburse the Victims of Crime Compensation Board for any and all compensation paid by the Victims of Crime Compensation Board directly to or on behalf of the victim, and may require that the defendant reimburse any parties that may have compensated the victim, as the court may determine. Compensatory losses shall include, but not be limited to, loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorney's fees, court costs, and compensation for pain and suffering. Where appropriate, punitive damages may be awarded in addition to compensatory damages.

(5) An order requiring the defendant to receive professional domestic violence counseling from either a private source or a source appointed by the court and, in that event, requiring the defendant to provide the court at specified intervals with documentation of attendance at the professional counseling. The court may order the defendant to pay for the professional counseling. No application by the defendant to dissolve a final order which contains a requirement for attendance at professional counseling pursuant to this paragraph shall be granted by the court unless, in addition to any other provisions required by law or conditions ordered by the court, the defendant has completed all required attendance at such counseling.

(6) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.

(7) An order restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.

(8) An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members; provided that this issue has not been resolved or is not being litigated between the parties in another action.

(9) An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, an identification document, a key, and other personal effects.

(10) An order awarding emergency monetary relief, including emergency support for minor children, to the victim and other dependents, if any. An ongoing obligation of support shall be determined at a later date pursuant to applicable law.

(11) An order awarding temporary custody of a minor child. The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent.

(12) An order requiring that a law enforcement officer accompany either party to the residence or any shared business premises to supervise the removal of personal belongings in order to ensure the personal safety of the plaintiff when a restraining order has been issued.

(13) An order granting any other appropriate relief for the plaintiff and dependent children, provided that the plaintiff consents to such relief, including relief requested by the plaintiff at the final hearing, whether or not the plaintiff requested such relief at the time of the granting of the initial emergency order.

(14) An order that requires that the defendant report to the intake unit of the Family Part of the Chancery Division of the Superior Court for monitoring of any other provision of the order.

(15) In addition to the order prohibiting the defendant from possessing any firearm, the court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.2C:39-1 and ordering the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located.

(16) An order prohibiting the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order in a manner that, taken in the context of past actions of the defendant, would put the complainant in reasonable fear that the defendant would cause the death or injury of the complainant or any other person.

(17) An order requiring the defendant to undergo a psychiatric evaluation.

In addition, any person found by the court in a final hearing to have committed an act of domestic violence will be ordered by the court to pay a civil penalty of at least $50, but not to exceed $500. In imposing this civil penalty, the court will take into consideration the nature and degree of injury suffered by the victim. The court may waive the penalty in cases of extreme financial hardship. 

In addition to any other penalty, fine or charge imposed pursuant to law, a person convicted of an act of domestic violence shall be subject to a surcharge in the amount of $100 payable to the Treasurer of the State of New Jersey for use by the Department of Human Services to fund grants for domestic violence prevention, training and assessment.

MODIFICATION AND DISSOLUTION OF FINAL RESTRAINING ORDERS

Unlike final restraining orders entered in other states (sometimes called Orders of Protection), final restraining orders entered under New Jersey’s Prevention of Domestic Violence Act are of unlimited duration. Upon good cause shown, these final orders may be dissolved or modified only upon application to the Family Part of the Chancery Division of the Superior Court.


Donald S. Waskover, Esq.
Fort Lee, New Jersey 07024
Phone: 201-262-8888
Fax: 201-266-0503
Email: waskover@newjerseydivorcelawyer.net
website: newjerseydivorcelawyer.net